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15 September 1994
Doc. 7154
REPORT
on the abolition of capital punishment
(Rapporteur: Mr FRANCK,
Sweden, Socialist Group)
Summary
The death penalty has been in the focus of the Assembly for many years. In 1980 the Assembly considered that capital punishment was inhuman, and asked for a protocol to the European Convention on Human Rights abolishing capital punishment. On these grounds the Sixth Protocol was elaborated and opened for signature in 1983, and has since been signed and ratified by 20 member states.
The Rapporteur is of the opinion that at the moment a strong abolitionist current in member states and in those holding special guest status can be discerned, and that a consequent opportunity for complete abolition of capital punishment presents itself.
Therefore the Rapporteur recommends drawing up an additional protocol to the European Convention on Human Rights, abolishing the death penalty both in peace- and wartime, and obliging the signatories not to re-introduce it under any circumstances. He also envisages the setting up of a control-mechanism under the Secretary General to encompass both member states and states whose legislative assemblies enjoy special guest status. Finally, he recommends that the attitude of applicant states towards the death penalty be considered when deciding on their admission as full members to the Council of Europe, and makes an urgent plea to all parliaments in the world to abolish capital punishment completely.
I. Draft recommendation
1. The Parliamentary Assembly deplores the fact that the legislation of eleven Council of Europe member states and seven states whose legislative assemblies enjoy special guest status still provides for the death penalty.
2. It is deeply shocked that 59 people were legally put to death in these states last year and that at least 575 prisoners are known currently to be awaiting their execution.
3. The Assembly considers that the death penalty has no legitimate place in the penal systems of modern civilised societies, and that its application may well be compared with torture and be seen as inhuman and degrading punishment within the meaning of Article 3 of the European Convention of Human Rights.
4. It recalls, furthermore, that the imposition of the death penalty has proved ineffective as a deterrent, and, due to the possible fallibility of human justice, also tragic through the execution of innocent people.
5. It emphasises that in principle rules aimed at governing special situations should not differ from general rules unless there is a "good reason" to the contrary. The Assembly holds that there is no reason why capital punishment should be inflicted in wartime, when it is not inflicted in peacetime. On the contrary, it finds one very weighty reason why the death penalty should never be inflicted in wartime: wartime death sentences, meant to deter others from committing similar crimes, are usually carried out speedily so as not to lose their deterrent effect. The consequence, in the emotionally charged atmosphere of war, is a lack of legal safeguards and a high increase in the risk of executing an innocent prisoner.
6. Therefore the Assembly recommends that the Committee of Ministers:
i. draw up an additional protocol to the European Convention on Human Rights, abolishing the death penalty both in peace- and wartime, and obliging the signatories not to re-introduce it under any circumstances;
ii. set up a control-mechanism under the Secretary General to encompass both member states and states whose legislative assemblies enjoy special guest status:
a. obliging all states whose legislation still provides for the death penalty to set up a commission as soon as possible in their country with a view to abolishing capital punishment;
b. asking these commissions to report at regular six-monthly intervals to the Secretary General of the Council of Europe on how abolition is proceeding;
c. calling for a moratorium on executions to take hold immediately, while the commissions fulfil their tasks;
d. obliging the commissions to notify the Secretary General of the Council of Europe of any death sentences passed and any executions scheduled without delay, and to inform him in detail of the relevant circumstances;
e. binding any country that has scheduled an execution to halt it for a period of six months from the time of notification of the Secretary General, during which time the Secretary General may send a delegation to conduct an investigation and make a recommendation to the country concerned;
iii. organise a conference to take place in 1995 on the abolition of the death penalty, with the participation of all member states and those holding special guest status;
iv. consider the attitude of applicant states towards the death penalty when deciding on their admission as full members to the Council of Europe.
II. Draft resolution
1. The Parliamentary Assembly welcomes the abolition of capital punishment for offences committed both in war- and in peacetime in Greece on 16 December 1993, which provides an excellent example for other countries to follow.
2. The Assembly regrets that Liechtenstein, Turkey and Ukraine did not reply to the questionnaire on the death penalty sent to them, as to all member countries and to those whose legislative assemblies hold special guest status, by the Chairman of the Committee on Legal Affairs and Human Rights in March 1994.
3. In view of the irrefutable arguments against the imposition of capital punishment, it calls on the parliaments of all member states of the Council of Europe, and of all states whose legislative assemblies enjoy special guest status at the Assembly, which retain capital punishment for crimes committed in peacetime and/or in wartime, to strike it from their statute books completely.
4. The Assembly also urges all its members to personally take action to seek such abolition of capital punishment in their countries.
5. It invites all member states of the Council of Europe who have not yet done so, to sign and ratify the Sixth Protocol to the European Convention on Human Rights without delay.
6. The adequate implementation of the additional protocol to the European Convention on Human Rights should be a matter of continuous concern to the Assembly and the willingness to ratify the protocol be made a prerequisite for membership of the Council of Europe.
7. The Assembly calls upon all the parliaments in the world which have not yet abolished the death penalty, to do so promptly, following the example of the majority of Council of Europe member states.
8. Finally, it urges all heads of state and all parliaments in whose countries death sentences are passed to grant clemency to the convicted.
III. Explanatory Memorandum
by Mr FRANCK1
"Ni dans le coeur des individus ni dans les moeurs des sociétés, il n'y aura de paix durable tant que la mort ne sera pas mise hors la loi."
Albert Camus2
1. Introduction
1. The death penalty has been in the focus of the Parliamentary Assembly for many years. In 1980 the Assembly considered that capital punishment was inhuman3, and asked for a protocol to the European Convention on Human Rights (ECHR) abolishing capital punishment in Recommendation 891 (1980). On these grounds the Sixth Protocol to the ECHR was elaborated and opened for signature on 28 April 1983.
2. The Assembly, not entirely satisfied with the results achieved so far, must now re-examine this question, whose two main strands of arguments against capital punishment date back to the 18th century and the philosophy of the Enlightenment. Both of them can be traced back to the writings of Beccaria: the human rights and moral strand, and the criminal and social policy strand.
3. The first argument states that it is wrong to execute a prisoner and that the state must not have this power. The latter says that the death penalty is not needed for the control of crime and, moreover, may have harmful effects in the realm of social and criminal policy.
4. The archetypal form of state-authorized premeditated homicide has been with mankind since antiquity, but the end of the dark tunnel is now in sight. Its abolition has been envisaged for the last two centuries and the accelerating progress of this movement is a specific post-Second World War phenomenon dating from the adoption of the Universal Declaration of Human Rights on 10 December 1948.
5. Most recently, in the context of the Council of Europe, some encouraging information regarding the imposition of the death penalty have come to light. Apparently, there were only three executions in a Council of Europe member state (Lithuania) in 1993, yet still 59 in states whose legislative assemblies hold special guest status (Albania: 10; Belarus: 28; Russia: 21). Just a few years ago, many more European countries were executing their prisoners, and - though 62 executions might still seem like a high number - they actually represent a significant fall in comparison with former years. A strong abolitionist current and a consequent opportunity for abolition might thus be discerned.
6. These opportunities for abolition are few and far between: Historically speaking, the death penalty has often been abolished after periods of repression came to an end and sparked off a renewed interest in human rights, notoriously unfair cases pricked the public's conscience, or when a country's penal code or constitution had to be revised4. The figures mentioned above are only an indication of the momentum for abolition building up in Europe today: With the end of Communist repression and the promulgation of new laws and constitutions in many Central and Eastern European countries, an opportunity for complete abolition of the death penalty has come up, which the Council of Europe cannot afford to pass by.
7. The death penalty is considered by many to violate human rights: Firstly, the right to life, and secondly the right to be protected against cruel, inhuman or degrading punishment. Basic international standards on the right to life are contained in Art. 3 of the Universal Declaration on Human Rights, Art. 6 of the International Covenant on Civil and Political Rights, Art. 2 of the European Convention on Human Rights, Art. 4 of the African Charter on Human and People's Rights and Art.4 of the American Convention on Human Rights.
8. A central principle of the international protection of human rights is the ban of every sort of "cruel, inhuman or degrading treatment or punishment" as it is provided in Art. 5 of the Universal Declaration of Human Rights, in Art. 3 of the European Convention for the Protection of Human Rights (ECHR), in Art. 7 of the International Covenant on Civil and Political Rights (ICCPR) and in the four Geneva Conventions5 (especially Art. 3). It must be stressed that, along with the right to life, this ban is amongst those principles of which - according to these mentioned documents - no state is allowed to make an exception even in times of public emergency (e.g. Art. 15 paragraph 2 ECHR).
9. Amnesty International argues that the death penalty is very similar to torture in that it can be regarded as cruel, inhuman and degrading, destroys human lives and violates human rights. A representative of Amnesty International, Mr Eric Prokosch, asked the following questions before the Legal Affairs Committee on 21 December 1987: "When a prisoner is given electric shocks, it is torture which is unacceptable under any circumstances. Why could it be acceptable to attach electrodes to a prisoner's body and give such a massive jolt of electricity that life is extinguished? It is torture when a prisoner is forced to renounce his or her beliefs by the terrifying threat of being killed. Why then is it acceptable to keep a prisoner for days and years contemplating his promised death at the hands of the state? What is the death penalty if not the ultimate form of torture?"
10. No logical or consistent answer in favour of capital punishment can be found to these questions. Only coming to the conclusion that the death penalty must be abolished because it is inhuman and thus incompatible with our system of values could wipe out
this injustice. Capital punishment must come to be regarded in the same way as any other "cruel, inhuman or degrading treatment and punishment" for the world to become a place where mankind can live in peace and prosperity; this means the death penalty has to be abolished for all offences, be they peace-time or war-time offences, as soon as possible - worldwide.
2. Arguments for abolishing the death penalty
11. The following list of arguments does not claim to be complete or original, but it wants to show an extract of the well known basic problems of capital punishment which have existed for as long as the death penalty has been applied.
12. Capital punishment supporters bring up the classical theory of punishment as a deterrent. This argument is founded on the belief that people who are considering committing a capital offence may be dissuaded from doing so if they know that they risk forfeiting their lives. But this theory takes no account of the fact that e.g. the majority of murder victims are killed by someone who knows them or by someone whose mind is disturbed. Murders are most often committed in moments of passion, when extreme emotion overcomes reason. They may also be committed under the influence of drugs or alcohol. In all these cases, the murderer is unlikely to weigh up the risk of execution rationally beforehand and equally unlikely to be dissuaded by this threat of punishment.
13. Even those who commit a premeditated crime in a calculated manner normally believe that they have a good chance of evading arrest or of avoiding conviction. This means that the solution to deterring more criminals is making it more likely that they will get caught, not imposing the death penalty. I.e: Better crime clear-up rates might constitute a more effective deterrent than capital punishment.
14. Politically motivated acts of violence often produce a public outcry and may result in calls for the death penalty for terrorists. But terrorists are even less likely than other criminals to be deterred by the (often remote and low) risk of the death penalty, because terrorist activities themselves are fraught with the danger of death. What is more, executions of terrorists may create martyrs whose memory becomes a rallying point for their organisations. Apparently, the death penalty is more likely to increase acts of political violence than to stop them.
15. If the death penalty did deter potential offenders more effectively than alternative punishments, one would expect to find that in analyses of comparable jurisdictions those states which have the death penalty for a particular crime would have a lower rate of that crime than those which do not. But empirical evidence does not support the deterrent-argument. There is also no statistical evidence that the restriction of the number of capital offences leads inevitably to a relative increase in the rate of the crimes which formerly carried capital punishment. The question of the deterrent effect - lacking any clear evidence - must thus be answered in the negative. The overwhelming conclusion from the studies on the issue is that there is no reliable evidence that the death penalty deters any more effectively than other punishments, such as long-term imprisonment.
16. Another argument against the death penalty is that the execution itself might involve physical torture, because the execution methods used today cannot be guaranteed to cause instantaneous death in all cases. Errors in the judgment of the executioner can lead to torturous strangulation when hanging is the method of execution, and extreme pain and suffering when it is shooting, electrocution, lethal injection or gassing, beheading or stoning. It might be concluded on this evidence that an execution constitutes cruel, inhuman or degrading treatment or punishment as banned by several international legal instruments, such as the ECHR.
17. The cruelty of the death penalty is not restricted to the actual moment of execution. One of the unassailable arguments against capital punishment is the so-called "death row phenomenon". This is the extended period of time involved in appeals and collateral proceedings between imposition and execution of a sentence during which time the condemned person suffers severe and ever increasing stress, anguish, mental and moral suffering. It is possible that the prisoner suffers for many years from the conditions in death row, living in mounting tension in the shadow of death. The fact that a condemned person is subjected to the severe regime of death row in a high security prison for some years, notwithstanding psychological and psychiatric services, compounds the problem. Account must also be taken of the psychiatric evidence that the applicant fears violence and homosexual abuse from other inmates.
18. In Soering versus United Kingdom6 the European Court of Human Rights held that the death row phenomenon constituted inhuman and degrading treatment or punishment in contradiction of Art. 3 of the European Convention on Human Rights. The case concerned a national of the former German Federal Republic who had been arrested in the United Kingdom and was wanted in the USA where he had been convicted of capital murder following the gruesome killing of his girlfriend's parents in Virginia in 1985. The US authorities sought his extradition pursuant to existing treaties and in 1988 the British Home Secretary signed a warrant surrendering Soering to the USA. Soering appealed to the European Commission of Human Rights7 contending that the likely imposition of the death penalty would subject him to an inordinate delay between imposition and execution of the sentence (death row phenomenon), and thus violate his rights under the European Convention. The European Court of Human Rights ruled in his favour.
19. But the real tragical imponderability of the death penalty is the fallibility of human justice which makes inevitable the execution of some innocent persons who have been wrongly convicted. People who have been killed legally by the state can never be brought back to life, even if their innocence is later proven. So the irreparable risk lies in the very nature of capital punishment and makes certain that abolition is the only way to ensure that such miscarriages of justice do not occur.
20. Some states argue that a de facto moratorium on the use of the death penalty is sufficient, and that a complete abolition is not necessary. But retention of capital punishment in law, even if not used in practice, is not a suitable alternative to abolition, because moratoriums can quickly be ended - for example, should the highly volatile public opinion favour the death penalty after a particularly heinous crime has been committed, or should there be a coup in the country. The only way to make sure that the death penalty is never used again is to strike it from the statute books and to enter into international obligations not to reintroduce it.
21. One reason sometimes given for retaining the death penalty is that public opinion demands it. Polls often show considerable public support for capital punishment, especially in times of rising crime rates, or after a particularly horrible and violent crime has been committed. But research shows that attitudes towards the death penalty can change with more knowledge of the facts, and also with time. For example, in Germany shortly after the abolition of capital punishment, a majority still favoured it. But twenty years later, abolition had been accepted by the majority of the population. Yet, as Amnesty International argues, the most important argument against basing decisions such as the abolition of the death penalty on public opinion, is that respect for human rights must never depend on the opinion of even a majority. For example, torture would never be permissable even if there were public support for it.
22. Finally, one of the most powerful arguments in favour of the abolition of the death penalty is that the abolitionist experience has been successful. Since the Second World War the death penalty, once abolished, has not been reintroduced in any European country apart from the former USSR, even when there were changes in public opinion and motions for its reintroduction. In the debates in parliaments, the arguments for the abolition of the death penalty and the lack of negative consequences due to its previous abolition always held sway.
23. Since the abolitionist experience has been so successful, it is surprising that many countries forbid the use of the death penalty in peacetime, but provide for its application in wartime. In general the principle is accepted that rules aimed at governing special situations should not differ from general rules unless there is "good reason" to the contrary. This does not seem to be the case as regards capital punishment for several reasons8:
24. If the death penalty is seen as contrary to the right of life or the protection from cruel, inhuman or degrading punishment, these are basic human rights that can never be derogated from - not in peacetime and not in wartime.
25. Some people argue that the death penalty holds a unique deterrent effect in wartime, since it can be applied even in very unstable situations in which the threat
of imprisonment is of little use. But while this may be true, those who are willing to help the enemy are often motivated by idealism, blind hatred, or fear - all of them emotions that do not lend themselves well to rational calculations. What is more, a death sentence, in order to be effective as a deterrent, must be carried out speedily: this, however, could imply a reduction of judicial safeguards and a consequent increase in the risk of executing an innocent person. This risk is bound to be higher in wartime, anyway, since exceptional situations are often characterized by strong (irrational) collective emotions - i.e. capital punishment is more likely to be abused in exactly those situations.
26. It is for this reason that there should be no difference in the treatment of capital punishment in peacetime or in wartime. Complete abolition is the only consistent answer.
3. International legal instruments in connection with the death penalty
27. The evolution of norms on the death penalty since 1948 is testimony to the vitality of modern international human rights law. The international agreements on the protection of human rights show a tendency to restrict the application of the death penalty. The European Convention on Human Rights (ECHR) provides for in Article 2 the carrying out of a death sentence as an exception of the right to life. Sixteen years later, the requirements of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 19 December 1966, are more restrictive: according to Article 6 the death penalty is applicable only for most serious crimes and may not be imposed on minors under 18 or carried out on pregnant women.
28. A stronger restriction of the death penalty is contained in Article 4 of the American Convention on Human Rights, adopted on 22 November 1969, which came into force on 18 July 1978. It was in reality an abolitionist treaty, at least for those states that had already abolished the death penalty, because it provided that capital punishment could not be reinstated once it had disappeared from a state's statute book. According to the American Convention on Human Rights the scope of crimes punishable by death cannot be widened. The death penalty may not be imposed for political crimes and on persons aged over 70.
29. A promising achievement is the Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty (Appendix I, text of the Protocol), drawn up within the Council of Europe by the Steering Committee for Human Rights and adopted by the Committee of Ministers. It was opened for signature by the member states of the Council of Europe on 28 April 1983. Twelve of the 21 member states of the Council of Europe at that time signed it on this date: Austria, Belgium, Denmark, France, Germany, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, and Switzerland. The entry into force on 1 March 1985 was achieved with the essential five ratifications by Austria, Denmark, Luxembourg, Spain and Sweden. The Sixth Protocol is the first agreement under international law containing the legal obligation of the parties to abolish the death penalty.
30. To date 25 of the 32 members of the Council of Europe have signed and ratified the Sixth Protocol (Appendix II). Bulgaria, Cyprus, Lithuania, Poland, Romania, Turkey and the United Kingdom have not signed it yet. Three of the member states have signed but not yet ratified (Belgium, Estonia, Greece).
31. According to Article 1 of the Sixth Protocol, the death penalty is abolished and no one shall be condemned to such penalty or executed. Only member states of the Council of Europe which have deleted the death penalty from their internal law can become a Party to the Protocol. The obligation to abolish the death penalty is restricted to times of peace, because Art. 2 allows provisions for the death penalty in a state's law in respect of acts committed in times of war or of imminent threat of war. But this is already more strict than the European Convention on Human Rights in general, which allows a state derogations from its obligations "in time of war or other public emergency threatening the life of a nation"9.
32. According to Article 15 paragraph 1 ECHR any contracting party may take measures derogating from its obligations under the ECHR in times of war or other public emergency. In this respect the Protocol is more restrictive as in Art. 3 no derogation from the provisions of the Protocol under Article 15 of the Convention is allowed. Also reservations in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision (Article 64 ECHR) are not permitted (Article 4 of the Protocol). As according to Article 6 of the Protocol the provisions in Article 1 to 5 are regarded as additional articles to the Convention, all the provisions of the Convention are applicable. This means that Article 2 paragraph 1, sentence 1 (which states the right to life), and paragraph 2 ECHR (which states that the deprivation of life shall not be regarded as inflicted in contravention of the right to life in the mentioned cases) is valid for the parties of the Protocol. Article 2, paragraph 1, sentence 2, which states that the deprivation of life is only allowed in the execution of a sentence of a court following his conviction of a crime for which the death penalty is provided by law, is valid for those states which retain the death penalty in times of war.
33. The example of the Sixth Protocol has attracted interest elsewhere. A Protocol to the American Convention on Human Rights to Abolish the Death Penalty (prepared in 1987) and the United Nations Second Optional Protocol to the International Covenant on Civil and Political Rights aiming the Abolition of the Death Penalty which came into force on 11 July 1991 follow the Sixth Protocol by outlawing the death penalty for all offences. Reservations are expressly not provided for, but a party may declare at the time of ratification or accession that it reserves the right to apply the death penalty in wartime for extremely serious crimes of a military nature. The protocol to the American Convention was ratified by only one state (as of 1 February 1993) and it is not yet in force. However, the European Parliament adopted a resolution on 12 March 1992, urging the member states of the European Community to ratify the UN Second Optional Protocol without delay. By May 1994, 23 states, many of them European, had ratified the Protocol.
4. History of the death penalty in Council of Europe member states
34. On 30 March 1994, the Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly sent out a questionnaire (reproduced as Appendix I) to the Chairmen of all national parliamentary delegations on behalf of the Rapporteur. Of the 32 member states of the Council, and the 9 states who hold special guest status, only three did not reply: Liechtenstein, Turkey and Ukraine. The answers to the questionnaire have been summarised by the Secretariat and reproduced in Doc. AS/Jur (1994) 48, which is available from the Secretariat of the Committee on request.
35. At this point the Rapporteur will thus limit himself to a brief description of the most important tendencies and the countries representing them.
a. Abolition for all offences - total abolitionists
36. The logical continuation of the tendency to restrict the application of the death penalty is the total abolition. Many of the European states have already chosen this way. Among the abolitionist countries are even Croatia and the Former Yugoslav Republic of Macedonia, which are not yet members of the Council of Europe but abolished the death penalty under their constitutions in 1990 and 1991, or Monaco which abolished the death penalty for all offences under Article 20 of a new constitution of 17 December 1962.
37. The majority of the member states of the Council of Europe set a good example. Amongst those member states that have abolished the death penalty completely are: Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, the Netherlands, Norway, Portugal, Romania, San Marino, Slovakia, Slovenia, Sweden and Switzerland. Greece is the newest addition to abolitionist countries, having passed a law on 16 December 1993 abolishing the death penalty both in peace-time and in war-time.
38. The most remarkable date which can be found among the abolitionist countries is the last known execution in the Republic of San Marino: It was carried out in 1468!
b. Abolitionists with reservations
Belgium
On 13 September 1991 the Belgian Council of Ministers approved a bill abolishing the death penalty for peacetime offences but retaining the death penalty for serious military offences committed in times of war. The bill could not be formally tabled because the parliament was dissolved in October 1991. A draft law abolishing the death penalty for all crimes save certain serious crimes committed in wartime is currently being examined in the Legal Committee of the Chamber of Representatives. It has yet to be passed by the said Chamber and by the Senate.
Under the penal code of 1867 the death penalty is provided for in cases of serious crimes against the person, and specified crimes against state security. Additional death sentences were introduced for kidnapping (in June 1975) and for hijacking an aircraft (in June 1976), both under aggravating circumstances. The mandatory death penalty is also provided for in cases of certain crimes in the Military Penal Code for members of the armed forces, but since 1863 death sentences for common criminal offences have, with one exception, been commuted.
The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, was signed by Belgium on 12 July 1990, the Sixth Protocol to the ECHR was signed on 28 April 1983.
Cyprus
On 15 December 1983 the Council of Ministers voted in favour of the abolition of the death penalty for premeditated murder and its replacement with life imprisonment (Criminal Code [Amendment] Law 86/1983). According to the Cypriot Ministry of Justice and Public Order, capital punishment was thus abolished under the Criminal Code. However, according to Amnesty International, the Criminal Code retains the death penalty for treason (Section 36), instigating invasion (Section 37) and piracy with violence (Section 69). Certain offences against the state carry the death penalty under the Military Criminal Code.
The last execution was carried out by hanging on 13 June 1962.
The competent authorities are apparently contemplating the amendment of the context of the military offences for which capital punishment is retained, so as to enable the Republic to become a party to the Sixth Protocol of the ECHR, which it has not yet signed.
Italy
Article 27 of the Constitution of the Republic of Italy (adopted on 27 December 1947) states: "The death penalty is not allowed save in cases specified by military laws in time of war" and the Wartime Military Penal Code currently retains the death penalty for a wide range of offences. However, in February 1993 a majority of the Chamber of Deputies put forward a bill, drawn up in collaboration with Amnesty International, proposing the elimination of the death penalty from the Wartime Military Penal Code. The Chamber of Deputies approved the bill in July 1993. The parliament was dissolved in January 1994 to make way for general elections, but now, after the elections have taken place, an analogous bill is apparently still awaiting examination by the Senate.
The Second Optional Protocol to the ICCPR was signed by Italy on 13 February 1990, the Sixth Protocol to the ECHR was ratified on 29 December 1988.
Malta
Malta abolished the death penalty in 1971 for all offences in the Criminal Code, but retained it under the Armed Forces Act of 1970 for a series of offences committed by those subject to military law, such as aiding the enemy or taking part in a mutiny. Trial is by court-martial. Since 10 April 1990 the use of the death penalty in the Armed Forces Act is limited to times of war.
The last execution was carried out in 1943.
The Sixth Protocol to the ECHR was ratified by Malta on 26 March 1991.
Spain
Spain's new constitution, approved by popular referendum in December 1978, abolished the death penalty for peacetime offences but retained it for offences under the Military Penal Code in time of war. A new Military Penal Code which came into force in June 1986, retained the death penalty as an optional punishment for a wide range of wartime offences.
The last executions were on 17 September 1975 when five men convicted of murdering public order officials were shot by firing-squad despite worldwide appeals for clemency.
Spain ratified the Second Optional Protocol to the ICCPR with the reservation "which provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime" on 11 April 1991. The Sixth Protocol to the ECHR was ratified by Spain on 14 January 1985.
United Kingdom
Abolition of the death penalty for murder was made permanent on 18 December 1969, after a five-years experimental period. The death penalty is retained for high treason both in peacetime and in wartime under the Treason Act 1914, and in England and Wales for piracy with violence under the Piracy Act, 1837. It is also retained for a number of offences (treason, espionage) committed by members of the armed forces in wartime under the Army Act, 1955; the Air Force Act, 1955; and the Naval Discipline Act, 1957. Under the Armed Forces Act adopted in 1981, the death penalty was abolished for civilians convicted of spying on board a naval ship or at an overseas naval establishment.
The Northern Ireland (Emergency Provisions) Act 1973 abolished the distinction previously used in Northern Ireland between murder and capital murder which is the murder of a police officer or prison officer in the course of duty, and provided a maximum penalty of life imprisonment for murder.
The last executions of two men convicted of murder were on 13 August 1964. Since the abolition of the death penalty for murder, some motions to reintroduce it have been rejected. The Law Commission will be reviewing the law on treason in the future, with a view to creating an offence of treason applicable only during the existence of a state of war.
United Kingdom has not yet signed the Sixth Protocol to the ECHR.
c. Retentionists
Bulgaria
A moratorium on executions introduced on 20 July 1990 followed on 21 August by the commutation of the death sentences of 11 of the 12 persons on death row remained in force until February 1992 when one person was sentenced to death for murder. In the last 24 months, 14 death sentences have been handed down, of which 6 have been confirmed and 8 are not yet final. The death sentences have not been carried out because of the moratorium still in force.
An optional death penalty is provided in the law for several crimes against the state including treason, espionage and sabotage. There are 11 different types of homicide punishable by an optional death penalty including premeditated murder, the killing of a Bulgarian official or an official of an ally and killing for personal gain. Optional death penalty is also provided for in cases of robbery with violence, war crimes, genocide, preparing epidemic bacteria with the intention of causing infection in other people and for five military crimes.
Amendments to the penal code providing for an optional death penalty for acts of terrorism by means of explosives or other methods was approved in May 1985, and for armed robbery in October 1986.
A new constitution adopted in July 1991 states the right to life but has not been followed by abolition of the death penalty in law. In July 1992 the President of Bulgaria stated that "we are doing the best to abolish this anti-human measure ... and align with the majority of Europe where this has long been a fact". There are discussions in the Legislative Committee of the National Assembly and in the Constitutional Court about the abolition of the death penalty, but difficulties are foreseen because of the difficult transition period to democracy the country is experiencing, accompanied as it is by a high crime rate.
Bulgaria has not yet signed the Sixth Protocol to the ECHR.
Estonia
During the period 1988-1991 the three Baltic states regained their independence after half a century of incorporation in the Union of Soviet Socialist Republics. All the three states retained the death penalty in their respective criminal codes. The new constitution of the Republic of Estonia was adopted in July 1992. In June 1992 the new criminal code came into force. The number of crimes punishable by death was reduced from 18 under the old Soviet legislation to three (aggravated murder, acts of terrorism, assassination) in Estonia.
In the last 24 months, 6 death sentences have been handed down. The last execution was in September 1991, but some reports exist that the prisoner was shot by prison guards in the washroom, allegedly in retaliation for an earlier altercation. Five prisoners are currently awaiting their execution.
Estonia signed the Sixth Protocol to the ECHR on 14 May 1993. Legislation abolishing the death penalty for peacetime offences was hoped to be forthcoming in 1994, but the complicated delinquency situation (many extremely brutal crimes) might prove a hindrance.
Lithuania
After its independence Lithuania retained the death penalty but reduced the crimes punishable by death from 18 (under the Soviet legislation) to one: aggravated murder.
In the period 30 April 1992 - 30 April 1994, 15 death sentences were handed down. In the last 24 months 3 persons were executed by shooting. Two prisoners are currently on death row, awaiting the answer from the President of the Republic to their petitions for clemency.
Abolition of the death penalty is envisaged eventually, but the conservative public opinion which actively supports the death penalty influences attitudes and decisions made at state level.
Lithuania has not yet signed the Sixth Protocol to the ECHR.
Poland
An unofficial moratorium on the use of the death penalty was in force until 1989 when death sentences were passed on four people. In December 1991 one death sentence was passed. One person was sentenced to death for murder in March 1992 and another in November 1992. All these people were still on death row at the end of 1992. The Polish authorities informed the Rapporteur that one death sentence had been handed down in 1993, but that the verdict was not yet final, and that this person was the only one on death row.
Article 38 of the current penal code of 1969 states that the death penalty is exceptionally provided for in cases of the most serious crimes, in practice almost exclusively imposed for murder.
The last execution took place in 1988. The draft Penal Code drawn up by the Justice Ministry's Commission replaces the death penalty with life imprisonment.
Poland has not yet signed the Sixth Protocol to the ECHR.
Turkey
There has been a de facto moratorium on executions in Turkey since the last execution in 1984, but death sentences have been continued to be imposed. An earlier de facto moratorium from 1972 to 1980 was interrupted by the military coup of September 1980 and October 1984 when 50 persons were executed, among them 23 for common crimes and 27 for political related offences, all (except for one) involving killings.
However, on 17 November 1993, the Judicial Commission approved the death sentence of Seyfettin Uzundiz, convicted of murder and armed robbery. His file will now be sent to the plenary of the Turkish Grand National Assembly for approval, which requires a simple majority. Execution by hanging may be carried out after the death sentence has been ratified by parliament. This ratification takes the form of a law, which can then be returned back by the President of the Republic for reconsideration or, in case this reconsideration has been refuted by the Parliament, can be abrogated by the Constitutional Court, upon appeal, for irregularities of voting or for reasons of unconstitutionality.
This development is contrary to previous ones, when, for example, under the Anti-Terror Law (April 1991), hundreds of pending death sentences were commuted to terms of imprisonment. In November 1990 some amendments to the penal code were ratified reducing the number of offences punishable by death from 29 to 13 (separatist offences, offences against the state or the constitution, common criminal offences such as murder).
In the present political climate, the lobby in favour of the death penalty in Turkey is very vocal and public opinion is moving in the same direction. It might be possible that the ratification of the death sentence of Seyfettin Uzundiz, an ordinary criminal, might serve to clear the way for executions of people convicted of politically motivated offences (e.g. members of the outlawed Kurdish Workers' Party PKK). In a separate development, six parliamentarians (members of the DEP-party declared unconstitutional) are facing a mandatory death penalty on charges of high treason.
Turkey did not reply to the questionnaire sent out to all countries.
Turkey has not yet signed the Sixth Protocol to the ECHR.
5. The death penalty in states holding special guest status
Albania - retentionist
Up to 1990 there were 33 crimes punishable by death: In 1993 they were first reduced to 13 and then to 7.
Agitation and propaganda against the state are no longer capital offences. The death penalty remains for certain "economic crimes" (theft of state property and theft of citizens' property), and for treason, espionage, terrorism, murder in grave circumstances and child kidnapping.
Six people were sentenced to death in 1991, four of whom were executed, one death sentence was commuted into 25 years of imprisonment, and the Supreme Court ordered a retrial in the case of the sixth person. Fourteen condemnations were reported for 1992, seven for 1993. Of these, ten executions were carried out. The other eleven prisoners were pardoned by the President of the Republic.
After a debate held in the People's Assembly in 1993, the Assembly decided to maintain the death penalty for given social and economic reasons, such as the cultural backwardness of the society, conflicts emerging in the course of the re-establishment of private ownership and economic difficulties of the transition stage.
Belarus - retentionist
Belarus retains the death penalty for 11 offences in peacetime, and for a variety of other offences related to military service applied in wartime. Over the 1992-93 period, 44 persons were sentences to death for murder under aggravating circumstances (9.6% of all 459 persons convicted of murder). In 1992, 31 executions were carried out, in 1993, 20, and in 1994 (to date) eight. All executions were by firing squad. 33 persons are awaiting execution.
In April 1993 the Parliament passed (in first reading) a draft Penal Code which provides for capital punishment only in cases of premeditated murder under aggravating circumstances. Although the idea of abolition enjoys no public support, eventually, total abolition of capital punishment is hoped for.
Croatia - abolitionist
In June 1991 the Republic of Croatia declared its independence from the Socialist Federal Republic of Yugoslavia (SFRY). Croatia totally abolished the death penalty under its constitution of 1990.
Latvia - retentionist
After its independence Latvia retained the death penalty but reduced the crimes punishable from 18 (under the old Soviet legislation) to seven in February 1992: banditry, actions disrupting the work of correctional labour institutions, counterfeiting under aggravating circumstances, attempted murder of an official of the police or of a home guard under aggravating circumstances, rape under particularly aggravating circumstances, hijacking an airplane in aggravating circumstances and intentional homicide in aggravating circumstances.
Since the beginning of 1989, nine executions have been carried out. The most recent execution took place in May 1992. Five death sentences were passed in 1992, four of which have been commuted; two additional death sentences have been handed down since then. Two prisoners are awaiting execution.
A law on the abolition of capital punishment is being drafted, but has not yet been discussed in the parliamentary Human Rights Committee, and its inclusion on the agenda of the parliament is not yet determined.
Former Yugoslav Republic of Macedonia - abolitionist
The Assembly of the Republic of Macedonia declared its sovereignty and autonomy in September 1991 and abolished the death penalty for all offences under its constitution of 1991. The Criminal Code of the former SFRY has been replaced by a republican law without the possibility of the death penalty.
Moldova - retentionist
Moldova retained the death penalty for 18 offences in peacetime. The parliament of Moldova took a vote on an amendment of the Penal Code on 1 April 1992 and abolished the death penalty as a possible punishment for six peacetime offences. The death penalty is retained for murder under aggravating circumstances, rape with extremely serious consequences or of a minor aged under 14, attempt on the life of a police officer, terrorising the representative of a foreign state, and for various military offences. Under the amendment women were exempted from the death penalty.
In the last 24 months, six death sentences were handed down. 15 individuals are currently awaiting execution, but no death sentences have been carried out because of the lack of adequate executing conditions.
Article 24 of the draft Constitution of Moldova foresees the abolition of the death penalty, but allows for its application as an exceptional measure. The Moldovan authorities foresee the preservation of the death penalty for very grave offences in wartime only.
Russia - retentionist
The head of the parliamentary Clemency Commission of the former USSR reported in July 1991 that most of the 208 (mainly for aggravated murder) executions recorded in the USSR in 1990 were carried out in two republics: Russia and Ukraine. Death sentences are regularly passed and carried out in the Russian Federation. But apparently, their number is shrinking: In 1992 159 death sentences were passed (1991:223, 1990:100), 3 people were executed (1991:59, 1990:76), while 54 sentences were commuted (1991:37, 1990:2). Nevertheless, according to the Ministry of Justice, 157 death sentences were handed down in 1993, of which 18 were executed by shooting. The Ministry of the Interior has confirmed that as of 1 July 1994, 510 prisoners were awaiting their execution (192 others had been pardoned 1993-94).
On 5 December 1991 the death penalty was abolished for three economic offences: speculation (Article 88), aggravated bribe-taking (Article 173), and large scale theft of state property (Article 93-1). On 29 April 1993, Article 73, which carried a possible death sentence for "Especially dangerous crimes against the state committed against another working people's state" was totally abolished. Consensual male homosexuality was also decriminalized. On 1 July 1994, according to the Ministry of the Interior, Article 87 which provides for the death penalty for "making or pressing counterfeit money or securities" if committed as a form of business was amended.
The law adopted on 29 April 1993 exempts all women, and men aged over 65, from the death penalty. Existing legislation also exempts all minors under 18 years of age and those ruled insane.
According to information from the Ministry of Justice, the new draft Criminal Code foresees the death penalty only for deliberate murders in aggravating circumstances, in line with Article 20 of the new Constitution which allows for the death penalty only as an exceptional measure for especially grave crimes against life.
Ukraine - retentionist
Death sentences are regularly passed and carried out in Ukraine, but exact figures are not available. In June 1992 the death penalty was abolished for two economic crimes, thereby reducing its scope to five offences, all involving the use of violence.
In 1992 six condemnations were known, and at least 13 people were believed to be under sentence of death.
Ukraine did not reply to the questionnaire sent to all countries.
6. The death penalty throughout the world
39. Nearly half of the countries in the world have abolished the death penalty in law or practice for all but the most exceptional crimes, such as serious crimes committed during state of war. European countries account for nearly half of the countries worldwide that have abolished the death penalty for all offences. On a regional level, Europe and Latin America stand far in front with strong abolitionist traditions dating back into the last century.
40. Other important regions of the world, North America, Asia and Africa, are very far behind. While Canada abolished the death penalty for ordinary crimes in 1976, the USA seem increasingly hardened in their resolve to maintain capital punishment. Since the US Federal Supreme Court allowed the application of the death penalty in 1976, 220 people have been executed.10 Amongst those executed have been several minors and people suffering from mental illness, brain damage or mental retardation. According to Amnesty International, the death sentence is imposed in a discriminatory manner as regards minorities.
41. There is a wide retentionist lobby in the USA. For example, in August 1993 President Clinton reportedly said that he wanted to expand the number of crimes punishable by death.11 But there are voices in favour of abolition in the USA, too: In February 1994 Justice Harry Blackmun of the US Supreme Court roundly condemned the death penalty in a dissenting opinion, stating that "from this day forward I no longer shall tinker with the machinery of death".
42. On the Asian continent, China, Iraq and Iran make extensive use of the death penalty. In all these countries (and several others, such as North Korea), the death penalty is used as an instrument of political repression, often involving unfair or summary trials. Additionally, in Islamic countries such as Iran and Saudi Arabia, the stoning to death of people accused of sexual crimes (such as adultery), is unfortunately rather common.
43. Most African countries provide for the use of the death penalty, although the frequency with which it is imposed and inflicted varies considerably from country to country. Kenya, Nigeria, Sudan, Uganda and Zambia are amongst the worst offenders, to name but a few. But there are also encouraging examples: Apparently, the death penalty in Namibia has been abolished, and South Africa has promised to do so soon.
7. Conclusions
44. Considering thus that the death penalty is cruel and unnecessary, the Assembly should call on all its member states to sign and ratify the Sixth Protocol to the ECHR as soon as possible, if they have not already done so.
45. Since there is no evidence that the death penalty is any less cruel and unnecessary in wartime than in peacetime, the Assembly should call on all its member states to abolish the death penalty not just for peacetime offences, but for all: This means striking the death penalty from the statute books completely, also from military codes.
46. For the above reasons the Assembly should call on the Committee of Ministers to enshrine the abolition of the death penalty for all offences in the ECHR by drafting a new additional Protocol to the ECHR to exclude any wartime emergency provisions for the exceptional use of the death penalty, and to oblige all signatories to the Protocol not to re-introduce the death penalty under any circumstances.
47. The Rapporteur thinks that a conference on the abolition of the death penalty should be organised in 1995, with the participation of all member states and those holding special guest status.
48. The Assembly should call on all states worldwide to abolish the death penalty, both in peace- and wartime. Member states who have already done so could provide other states worldwide with information about their successful abolition of the death penalty and their reasons for its abolition. In that way, it might be possible for Council of Europe member states to provide an example throughout the world.
49. The Rapporteur hopes that the death penalty can be completely abolished in all member countries and those holding special guest status within a period of three years. He suggests instituting a control-mechanism under the Secretary General to that effect.
APPENDIX I
QUESTIONNAIRE
To: Chairmen of national parliamentary delegations
From: Mr Franck, Rapporteur on the abolition of the death penalty
Committee on Legal Affairs and Human Rights
1. Does the legislation in your country provide for the death penalty?
If yes:
a) Does it make a distinction between peacetime and wartime?
b) For which offences may the death penalty be applied?
c) Have any death sentences been handed down during the last 24 months?
How many?
d) Were any death sentences carried out? How many? By what means were they carried out?
e) How many prisoners are currently awaiting execution?
f) Is it envisaged to abolish the death penalty? What would be the procedure?
g) If not, could you indicate why the death penalty is maintained in your legislation.
h) Is it envisaged to extend the scope of offences punishable by death?
If no:
i) Has your country signed and ratified Protocol No. 6 to the European Convention on Human Rights?
j) Have there been any recent movements in favour of reintroducing the death penalty?
2. Do you have any other comments on the Introductory Memorandum?
APPENDIX II
PROTOCOL N° 6
Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Doc 5738 and Reference 1569 of 1 July 1987
Draft recommendation and resolution adopted by the committee on 12 September 1994 with 17 votes in favour, 1 against and no abstentions.
Members of the committee: Lord Kirkhill (Chairman), MM Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis, Arnalds, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy (Alternate: Upton), Mrs Err, MM Espersen, Fogaš, Franck, Frunda, Fry, Fuhrmann, Galanos (Alternate: Hadjidemetriou), Ghigo, Guenov, Hagård, Mrs Haller, Mrs Holand, MM Hunault, Inönü, Mrs Jaani, MM Jaskiernia, Karas, Karcsay, Kempinaire, Loutfi, van der Maelen, Maginas, Rathbone, Robles Fraga, Rodeghiero, Rokofyllos, Salvi, von Schmude, Severin, Solé Tura, Mrs Soutendijk-van Appeldoorn, MM Soysal, Stoffelen, Tabajdi (Alternate: Németh), Trojan, Vinçon, Vogel, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate and Ms Kleinsorge.
1 1 The Rapporteur would like to thank Amnesty International for all its help and support in the drawing up of this report. He would especially like to commend its publication "When the state kills... the death penalty versus human rights", London, 1989, which he found most helpful and informative.
2 2 Albert Camus, "Réflexions sur la guillotine", in Arthur Koestler and Albert Camus, Réflexions sur la peine capitale, Paris, 1957.
3 3 Resolution 727 (1980).
4 4 For additional information, see: Eric Prokosch, How countries come to abolish the death penalty, March 1985, Amnesty International, AI Index ACT 05/14/85.
5 5 International Convention Relative to the Treatment of prisoners of War, 1929; ... ; Geneva Convention of August 12, 1949 Relative to the Treatment of Prisoners of War, in force: 21 October 1950 ; Geneva Convention of August 12, 1949 Relative to the Protection of Civilian Persons in the Time of War, in force: 21 October 1950.
6 6 Case No. 1/1989/161/217, judgement of 7 July 1989
7 7 App. No. 14038/88
8 8 For a more detailed study of the death penalty in wartime, please see the following Amnesty International publication: Antonio Marchesi, The death penalty in wartime: arguments for abolition, January 1994, AI Index: ACT 50/01/94.
9 9 European Convention on Human Rights, Article 15.1.
10 10 Frankfurter Allgemeine Zeitung, 16 September 1993, p. 9.
11 11 The Guardian international, 12 August 1993, p. 6.